We write on a lovely Sunday afternoon, much of which was devoted to trying to figure out what the oldest of the Drug and Device Law Little Rescue Dogs would deign to eat. We should note that we would do literally anything for this frail, scruffy angel incarnate. To wit, we have cooked fresh beef
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Illinois Appellate Court Affirms Summary Judgment on Failure-to-Warn and “Voluntary Undertaking” Claims in Programmable Pump Case
By Rachel B. Weil on
Before we turn to today’s case, a quick update: when last we spoke, we were about to board a plane for Peoria – our first work trip in sixteen months. We were excited about it. We regret to report that we stepped out of the plane into something resembling a weird post-apocalyptic Mad Max movie. …
Neither the ‘Malfunction Theory’ Nor the Res Ipsa Loquitur Doctrine Excuses A Plaintiff’s Failure to Offer Evidence of a Defect
By Andrew Tauber on
Today we report on Black v. DJO Glob., Inc., — P.3d —-, 2021 WL 2346038 (Idaho 2021), a short and sweet decision rejecting yet another plaintiff’s attempt to maintain a product-liability claim without evidence of a defect in the medical device at issue. Holding that neither the “malfunction theory” nor the related res ipsa…
We Report on FDA-Based Failure-To-Report Claims – A Fifty-State Survey (Part 3)
By Bexis on
Now that all three parts of our 50-state survey examining the state of state law concerning allegations that a defendant can state a common-law cause of action where the allegedly liability creating conduct is failure to make a statutorily mandated report to a governmental agency has been published, we have consolidated all fifty states under…
We Report on FDA-Based Failure-To-Report Claims – A Fifty-State Survey (Part 2)
By Bexis on
Now that all three parts of our 50-state survey examining the state of state law concerning allegations that a defendant can state a common-law cause of action where the allegedly liability creating conduct is failure to make a statutorily mandated report to a governmental agency has been published, we have consolidated all fifty states under…
We Report on FDA-Based Failure-To-Report Claims – A Fifty-State Survey
By Bexis on
Not too long ago we discussed the decision in In re Allergan Biocell Textured Breast Implant Products Liability Litigation, 537 F. Supp.3d 679 (D.N.J. 2021) (“TBI”). TBI addressed quite a few topics, one of which was the first nationwide (or close to it) analysis of whether a given jurisdiction permitted, under state…
Distributor Gets Out of Gadolinium Failure to Warn Claim
By Stephen McConnell on
The case of Dennis v. Bayer Healthcare Pharmaceuticals Inc., et al., 2020 WL 534307 (W.D. N.C. Feb. 3, 2020), has occupied our in bin for about a year, probably because there are aspects of it that rub us the wrong way. But not all of Dennis is a menace. If you represent a drug…
Pro Se Xarelto Plaintiffs Shown the Door for Failure to Comply with Lone Pine Order
By Stephen McConnell on
February is a fine time to cuddle up with a good book or a short case. Take a look at In re Xarelto Products Liability Litigation, 2021 WL 493069 (E.D. La. Feb. 10, 2021). Pro se plaintiffs brought a lawsuit claiming their relative died from a brain hemorrhage caused by Xarelto. Their case was…
District of Minnesota Says Maybe to Failure to Update Claim
By Michelle Yeary on
We have expressed our opinion on “failure to update” claims and have not hidden that we don’t think much of them. Failure to update claims were manufactured by plaintiffs in response to PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011) and Mutual Pharm. Co. v. Bartlett, 570 U.S. 472 (2013) which basically…
Learned Intermediary Rule and Failure to Depose Treater Combine to Clobber Iowa Pelvic Mesh Claims
By Stephen McConnell on
Kelly v. Ethicon, Inc., 2020 U.S. Dist. LEXIS 191665 (N.D. Iowa Oct. 16, 2020), is a remanded pelvic mesh case. The complaint included the usual panoply of causes of action for negligence, strict liability, fraud, and breach of warranty. Failure to warn, as usual, was central to the plaintiff’s case.
During the years while…